Citation Nr: 1145145
Decision Date: 12/09/11 Archive Date: 12/14/11
DOCKET NO. 08-26 003 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California
THE ISSUES
1. Entitlement to service connection for a bilateral hearing loss disability.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Veteran represented by: California Department of Veterans Affairs
ATTORNEY FOR THE BOARD
A. R. Grasman, Counsel
INTRODUCTION
The Veteran, who is the appellant, served on active duty from January 1967 to September 1968.
This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2007 of a Department of Veterans Affairs (VA) Regional Office (RO).
During the appeal period, in a rating decision in June 2011 the RO granted the claim of service connection for posttraumatic stress disorder and the claim is no longer in appellate status.
In substantive appeal in August 2008, the Veteran only appealed the claim of service connection for PTSD. As the RO continued to treat the appeal as including the claims of service connection for a hearing loss disability and for tinnitus, the RO implicitly waived any issue of timeliness of the appeal. As the RO has not taken any action to indicate to the Veteran that the claims do not remain on appeal, the requirement that there be a timely substantive appeal is waived. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (VA waives objection to timeliness of substantive appeal by taking actions that lead the Veteran to believe that an appeal was perfected).
FINDINGS OF FACT
1. A bilateral hearing loss was not affirmatively shown to have been present coincident with service; a bilateral hearing loss disability of the sensorineural type was not manifested to a compensable degree within one year from the date of separation from service; and a bilateral hearing loss disability, first diagnosed after service beyond the one-year presumptive period for sensorineural hearing loss as a chronic disease, is unrelated to an injury, disease, or event in service.
2. Tinnitus is related to noise exposure in service.
CONCLUSIONS OF LAW
1. A bilateral hearing loss disability was not incurred in or aggravated by service; and service connection for a bilateral hearing loss disability as a chronic disease may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2011).
2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2011).
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.
Duty to Notify
Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.
Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The RO provided pre-adjudication VCAA notice by letter, dated in July 2006. The Veteran was notified of the evidence needed to substantiate the claims of service connection, namely, evidence of current disability; evidence of an injury or disease in service or an event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service.
The Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit other records not in the custody of a Federal agency, such as private medical records, or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the general provisions for the effective date of a claim and for the degree of disability assignable.
As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim).
Duty to Assist
Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service records and VA records.
In November 2010, VA afforded the Veteran a VA examination and in August 2011, a supplemental opinion was obtained. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
The Board finds that the VA examination and opinion obtained in this case are adequate. The VA examiner considered all of the pertinent evidence of record, and provided an explanation for the opinion stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claims has been met. 38 C.F.R. § 3.159(c)(4).
As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Principles and Theories of Service Connection
A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. § 1110 (wartime service).
Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. §§ 3.303.
Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a).
For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b).
Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d).
For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for hearing loss of the sensorineural type, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.
Hearing loss for the purpose of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
Evidentiary Standards
VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). The record shows that the Veteran had combat service while aboard a ship that operated in the inland rivers of Vietnam. Therefore the combat provisions of 38 U.S.C.A. § 1154(b) apply.
Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997).
Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159; see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness).
Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).
Also, the Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) (fact-finding in veterans cases is to be done by the Board).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b).
Facts and Analysis
The service treatment records show that the Veteran did not have complaints of hearing loss or tinnitus throughout service. Examinations in 1965, 1966 and 1968 do not show complaints of hearing loss or tinnitus, and the Veteran denied ear problems. Hearing measured by whispered voice was normal.
As the service treatment records contain no complaint, finding, history, treatment, or diagnosis of hearing loss or tinnitus, on the basis of the service treatment records alone, hearing loss and tinnitus were not affirmatively shown to be present in service, and service connection under 38 U.S.C.A. §§ 1110 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not established.
As the Veteran was in combat, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease.
So long as the evidence is consistent with the circumstances, conditions or hardships of such service, the fact that there is no official record of such incurrence or aggravation in such service is of no consequence. 38 U.S.C.A. § 1154(b).
The presumption afforded under 38 U.S.C.A. § 1154(b) deals only with the question of whether a particular disease or injury was occurred in service, that is, what happened then, and not the question of either current disability or nexus to service, as to both of which competent evidence is required. Stated differently, evidence of a current disability and a nexus to service is still required. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996).
As such, the Veteran's statement of noise exposure in service is consistent with the circumstances, conditions or hardships of his service as a diesel mechanic in Vietnam.
On VA examination in November 2010, the Veteran complained of tinnitus and of hearing loss. The VA examiner noted that the Veteran was a diesel mechanic in service and that the Veteran indicated that he was exposed to the noise of diesel engines, small arms fire, and d grenades without ear protection. The Veteran also described occupational noise exposure to truck engines, driving and repairing trucks for 50 years without noise protection. The Veteran stated he also had recreational noise exposure to target shooting with noise protection and lawn care equipment, chainsaws and power tools without noise protection. He stated that tinnitus began in 1967 and is constant.
On audiometric testing, the pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
15
55
75
LEFT
10
10
15
65
85
His speech recognition scores were 100 percent in the right ear and 96 percent in the left ear. The examiner noted that the pure tone thresholds demonstrated bilateral sensorineural hearing loss.
In an addendum in August 2011, the VA examiner stated that while a whisper test cannot rule out a mild high frequency hearing loss, the Veteran's current hearing loss would not have resulted in a normal whisper test and that there were no records of hearing loss or tinnitus during or shortly after service. The VA examiner considered the Veteran's in-service and post-service noise exposure and expressed the opinion that the current hearing loss was not due to noise exposure in service, but is most likely due to occupational and recreational noise exposure subsequent to service.
Hearing Loss
On VA examination in the November 2010, the Veteran had auditory thresholds of over 40 decibels in two tested frequencies in each ear. Therefore, the Veteran's hearing loss is considered a disability under 38 C.F.R. § 3.385.
As for presumptive service connection for a bilateral hearing loss disability as a chronic disease under 38 U.S.C.A. § 1112 and 38 C.F.R. §§ 3.307 and 3.309, a bilateral hearing loss disability was first documented November 2010 is well beyond the one-year presumptive period after discharge from service in 1968 for presumptive service connection as a chronic disease.
Although the Veteran contends that he has had hearing loss since service, the evidence of record does not support his statement. The VA examiner found that the whisper test performed at separation from service would not have been normal based on the Veteran's current hearing loss disability.
And the service treatment records show that when the Veteran separated from service, he denied ear problems. On the basis of this evidence, continuity of symptomatology is interrupted and the Veteran's statement about continuity is not credible.
Even in the absence of continuity of symptomatology, service connection may be established if the evidence establishes a link or nexus between hearing loss and an injury, disease or event in service. Although the Veteran is competent to describe symptoms of impaired hearing, a hearing loss disability is not a condition under case law that has been found to be capable of lay observation, and the determination as to the presence of a hearing loss disability therefore is medical in nature, that is, not capable of lay observation, and competent medical evidence is needed to substantiate the claim. See Savage v. Gober, 10 Vet. App. 488, 498 (1997) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law , lay observation is competent); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).
Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or medical opinion. 38 C.F.R. § 3.159.
Also, a layperson is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, the Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau, 492 F.3d 1372 (Fed. Cir. 2007)).
Competency is a question of fact, which is to be addressed by the Board. Jandreau, 492 F.3d at 1377.
A hearing loss disability, however, is not a simple medical condition because the diagnosis is based on results of audiology testing that meet the standards of a hearing loss disability under 38 C.F.R. § 3.385. For this reason, the Board determines that a hearing loss disability under the criteria of 38 C.F.R. § 3.385 is not a simple medical condition that the Veteran as a lay person is competent to identify. Further, it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a diagnosis of a hearing loss disability.
Where, as here, there is a question of the presence or a diagnosis of a hearing loss disability in service, the Veteran is not capable of lay observation by case law and a bilateral hearing loss disability is not a simple medication condition, to the extent the Veteran's statements are offered as proof of the presence of a bilateral hearing loss disability in service or since service, the Veteran's statements are not competent evidence. As such, the statements are excluded and not admissible as evidence, that is, Veteran's statements are not to be considered as competent evidence favorable to claim.
As for the Veteran describing a contemporaneous medical diagnosis or the Veteran describing symptoms that later support a diagnosis by a medical professional, there is no evidence that a health-care professional diagnosed a bilateral hearing loss disability until the VA examination in November 2010. To the extent the Veteran implies that hearing loss is related to an injury, disease, or event in service, the Veteran's opinion as a lay person is limited to inferences that are rationally based on the Veteran's perception and does not require specialized education, training, or experience.
Additionally, the question of the relationship between a hearing loss disability under 38 C.F.R. § 3.385 and an injury, disease, or event in service is not a simple medical condition because the Veteran as a lay person is not competent to declare either the presence or diagnosis of a bilateral hearing loss disability based on personal observation, so that any inference based on what is not personally observable cannot be competent lay evidence. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the relationship between a bilateral hearing loss disability and an injury, disease, or event in service.
As the Veteran is not competent to establish a diagnosis of a bilateral hearing loss disability or to offer an opinion on the relationship between a bilateral hearing loss disability and an injury, disease, or event in service, the Board need not reach the question of whether or not the Veteran's statements are credible.
Here, the competent medical evidence consists of the VA examination and opinion. The VA examiner expressed the opinion that the Veteran's current hearing loss was not caused by noise exposure in service, but due to occupational and recreational noise exposure after service. As the VA audiologist is qualified through education, training, and experience to offer an opinion on the relationship between a bilateral hearing loss disability and an injury, disease, or event in service, the Board finds that the VA opinion is competent evidence against the claim.
As there is no favorable, competent evidence relating the Veteran's current bilateral hearing loss disability to noise exposure in service, the preponderance of the evidence is against the claim, based either on continuity of symptomatology under 38 C.F.R. § 3.303(b) or on a disability first diagnosed after service under 38 C.F.R. § 3.303(d), and the benefit of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b).
Tinnitus
The Veteran also seeks service connection for tinnitus, which he associates with noise exposure in service.
On the basis of the service treatment records alone, tinnitus was not affirmatively shown to be present in-service, but the absence of any in-service documentation is not dispositive as to whether the Veteran suffered from tinnitus during service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that ringing in the ears, tinnitus, is capable of lay observation).
The service records show that the Veteran was a diesel mechanic and he was involved in combat, which is consistent with the Veteran's statements that he was exposed to noise.
And the Board finds the Veteran's statement about noise exposure in service credible. See Washington, 19 Vet. App. 362, 369 (providing that the Board, as fact finder, must determine the probative value or weight of the admissible evidence).
As for the evidence against the claim, the VA examiner stated that there were no records of the Veteran having reported tinnitus during or shortly after service.
As the VA examiner did not account for the Veteran's statement that he experience tinnitus since service, which he is competent to state, and as the VA examiner relied on the absence of medical records to corroborate tinnitus, which under the circumstances of the case, has no probative value, the evidence against the claim is not persuasive.
While there is no contemporaneously documentation of tinnitus in service, the Veteran was exposed to noise in service, and the Veteran is competent to describe tinnitus in service and since, which the Board finds credible, unlike a hearing loss disability, which the Veteran is not competent to diagnose, and the Board did not reach the question of credibility.
As the Veteran's lay statement is competent and credible ith regard to noise exposure in service and in describing tinnitus in service and since service, and with evidence of current disability and evidence of a relationship between the current disability and noise exposure in service on the basis of continuity, all the elements of service connection have been met and service connection is established. See Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (If lay evidence presented by the veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence).
ORDER
Service connection for a bilateral hearing loss disability is denied.
Service connection for tinnitus is granted.
____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs